Monday, July 20, 2009


David Boies’s essay in Wall Street Journal today lead my mind to think about how the courts are going to approach arguments on gay marriage. It seems appropriate to question this through what I heard all week during the hearing on the nomination of Sonia Sotomayor.

After the grandstanding this past week about the role of judges applying the law not their personal bias I hope judges in courts soon to hear gay marriage cases follow this senatorial dictum.

I agree with the intent of Judge Sotomayor’s statements that our experiences are integral to how we interpret and understand. Experience by definition is “the fact or state of having been affected by or gained knowledge through direct observation or participation.” It is a filter through which we process all stimuli. No one can escape this pure human function.

Some Senators disagree.

Unfortunately, after purporting that judges leave aside bias, prejudice and personal feelings some senators are hoping to overturn gay marriage rulings in Iowa, Vermont, Massachusetts, Connecticut, Maine, New Hampshire and Vermont. They also want to stop California’s Prop 8 from being reversed. Ultimately as U.S. District Chief Judge Vaughn Walker predicted, "I am reasonably sure that, given the personalities in this courtroom, this case is only touching down in this court and it will have a life after this court," Walker said. "What happens here is in many ways a prelude to what happens later." Supreme Court here we come.

It certainly seems that those hoping to protect “traditional marriage” are dependent upon relying on bias, prejudice and personal feelings of Christian judges. Religion is probably the most fundamental form of bias, prejudice or personal feelings. Sen. Charles Grassley (R-IA) wants “to be absolutely certain that [judges] will faithfully interpret the law and the Constitution without bias or prejudice.” Is it hypocritical to demand fairness in the abstract but hope for bias in the specific of gay marriage? Senator Tom Coburn (R-OK) pronounced, I don’t think he was being ironic, “that's why Lady Justice is always depicted blind and why Aristotle defined law as ‘reason free from passion.’”

Other countries are better at separating religiosity from deciding of legal rights. David Boies writes today in the Wall Street Journal,

"Countries as Catholic as Spain, as different as Sweden and South Africa, and as near as Canada have embraced gay and lesbian marriage without any noticeable effect -- except the increase in human happiness and social stability that comes from permitting people to marry for love."
In the hearings for John Roberts nomination to the high court Sen Coburn said, “"If you have somebody first of all who has that connection with their personal faith and their allegiance to the law, you don't get into the Roe v. Wade situation," Coburn said, according to the Associated Press. "I am looking for somebody who is not going to make that mistake again in any other area of life." Let sing a song for Senator Coburn, “OKLAHOMA WHERE THE HYPOCRISY COMES SWEEPING DOWN THE PLAINS.”

Boies also writes,

"There are those who sincerely believe that homosexuality is inconsistent with their religion -- and the First Amendment guarantees their freedom of belief. However, the same First Amendment, as well as the Due Process and Equal Protection clauses, preclude the enshrinement of their religious-based disapproval in state law."

Why can’t we agree that religious dogma has no place in our courts and the discussion of our rights. And neither does hypocrisy.

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